‘Cybervetting’ might reveal things it shouldn’t

Toronto psychiatrist Dr. Howard Alter once wrote that as we traverse the voyage of life, we are all encumbered (or advantaged) by our many earlier incarnations. Our juvenile selves never entirely leave us and continue influencing our responses. You can run, but you can’t hide.

This inability to emerge from our past is paralleled in the job market. The Ontario Privacy Commission recently found that 77% of employers perform online background checks on prospective employees and 35% have eliminated candidates based on what those searches revealed.

This practice, coined cybervetting, provides insight into the accuracy of job applicants’ claims, but also has risks. A Web search may result in false or outdated information, or disclose a protected ground under human rights legislation.

Employers must be careful not to “screen out” potential job applicants solely on cybervetting results without further verification, at least, if there are potentially protected grounds revealed in the search. A rejected applicant may claim he or she was discriminated against based on a protected ground not included in his or her resumé and would not have been disclosed (and could not have been asked) on an interview. For example, pictures on someone’s Facebook page could reveal family status, sexual orientation, ethnicity or gender.

It is important for an employer to establish objective criteria for evaluating applicants to show decisions were made without relying on illegal criteria. For example, when Windsor was looking for a provincial offences officer in 2010, applicants were required to write a test after submitting their resumés. One applicant, Barnet Kiyaga received a grade of 58% (the passing grade was 60%). Accordingly, he was not invited for an interview. Kiyaga filed a complaint with the Human Rights Tribunal of Ontario claiming he was not hired due to discrimination on the grounds of colour, ethnic origin, place of origin and race.

However, Kiyaga was unable to establish that he was qualified for the job so his claim was dismissed. What helped the employer in this case was that it had used objective criteria (i.e., the test) in the selection process and the city’s witnesses were able to testify that the process was correctly followed.

If Windsor had ascertained prohibited information from cybervetting, it would have had a difficult time proving such information had not influenced its decision not to offer Kiyaga employment.

So how can an employer obtain background information on prospective employees while still respecting their right to privacy?

– Create a formal guide for gathering information on potential employees that must be followed and that delineates what information will be considered;

– Wondering how job applicants like to express themselves in less than 140 characters? Access social media sites, including Twitter, Facebook, LinkedIn, etc., but primarily as a background check rather than an evaluation tool;

– Use the same cybervetting criteria for each candidate. Do not place different weight on the information gathered from online resources depending on the candidate;

– Proceed with caution – social media searches should exclude searching based on protected grounds: race, ethnicity, colour, religion, sex, age or disability. If you locate such information, ensure the decision not to hire is based on non-discriminatory objective information;

– Find information online that you don’t like? Give the prospective employee an opportunity to explain any negative information;

– Keep a record of the information used for hiring and the reasons for the decision. You may not even recall the candidate by the time the human rights complaint comes in the door.

Following these tips not only will help defend complaints successfully, but also might help avoid receiving them in the first place.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.